October 19–26, 1995

city beat

Face To Face

After years of judicial wrangling and legislative maneuvering, voters will finally get to answer that question next month. A proposed amendment to the state constitution, which would allow children testimony privileges already granted by the U.S.Supreme Court, is on the November election ballots.

State courts began allowing children to testify in sex abuse and other cases via closed-circuit TV back in the early '80s. In 1990, the U.S. Supreme Court upheld closed-circuit testimony as being a proper way of allowing vulnerable and frightenedchildren to testify without facing the rigors of open court. Such testimony, ruled the justices, adhered to the 6th Amendment principal of an accuser facing the defendant.

However, one year later, the state Supreme Court ruled such testimony inadmissible, forcing children back into the courtroom.

Soon after the state ruling, state Sen. Stuart Greenleaf (R-Bucks/Montgomery) introduced a proposed amendment to the state constitution that would allow children to testify via closed-circuit TV.

"We are trying to level the playing field for children who are victims and witnesses," says Greenleaf. The senator cited the case of five-year-old Donna Field, who witnessed her father kill her mother in 1987, as an example of why thischange is needed.

"The little girl was so hysterical she couldn't testify until she was placed into a setting similar to the one proposed in my bill," says Greenleaf.

Because Greenleaf is proposing a change to the state constitution, his bill had to pass the legislature twice. This past spring, the legislature voted in favor of the bill for a second time, allowing voters to have their say.

Should the amendment be supported?

It depends on whom you ask.

"It's clearly an attempt by the legislation to respond to cases of sexual and physical abuse," explains Mark Phenicie, legislative counsel for Pennsylvania Trial Lawyers. The trauma a child experiences from the abuse, he says, can becompounded by the stresses of testifying before the person who abused them.

So allowing the child to testify elsewhere, so they do not have to see their alleged abuser, is the answer?

No, says Gerald Grimaud, attorney. "We must assume the defendant is innocent."

Having the child testify away from the defendant, says Grimaud, fosters the impression that the child is so traumatized by the alleged abuse that he cannot face his accuser without further emotional trauma. However, the defendant has not yet beentried and convicted, and so the assumption that testifying before the defendant is too traumatizing reveals an inherent leaning toward the guilt of the defendant.

But what can be done to protect the child as well as maintain the rights of the defendant, if the present system isn't working? According to Grimaud, the present system is working. He maintains that this proposed amendment does not take intoconsideration the fact that the judges have full authority over the attorneys who are questioning the children. Under the judges' jurisdiction, the examination is kept at a level appropriate for the child in question. Attorneys are kept fromquestioning children as harshly or hostilely as they might an adult.

Also to be taken into account, says Grimaud, is that the jury must assess whether the child is telling the truth. Having the child testify in another room can create some barriers to attaining this. A jury often makes judgments based on what theyperceive about a witness' nonverbal body language, such as shifting and eye contact. If the jury is not physically close to the child testifying, many of these cues can be missed, especially if the camera is not trained on the child for brief spellsduring the testimony.

Another reason Grimaud feels this proposed amendment should be looked at closely is that while child abuse, both physical and sexual, occurs, and unfortunately occurs too often, there have also been many well-publicized cases of False MemorySyndrome. This happens when a person, be it an adult, teen or child, has "remembered" incorrectly instances of abuse in their past. The memories are usually triggered by suggestions or leading questions by another person, often a therapist.Children in particular are highly susceptible to suggestion. When they claim to have been abused, they believe what they are saying; it is not a case of simple fabrication. However, it is hoped that if they must face who they are accusing, they willbe less likely to carry an untrue accusation through to the courts.

Mingo Stroueber, chief of the juvenile unit of the Defendants' Association, agrees with Grimaud, believing the proposed amendment to be a "bad idea."

"The movement," says Stroueber, "grew from concern about children in sexual abuse cases, but the overall ramifications [if the amendment is passed] could be dramatic."

One potentially problematic area, according to Stroueber, is the definition of a child: anyone under the age of 18. Another difficulty is that the amendment is not limited to abuse cases, but could be expanded to include any form of a criminal trial.Theoretically, then, a 17-year-old could accuse you of stealing his car and not have to testify in court before you.

Trial Lawyers Association chair Mark Phenicie says that he "assumes the amendment will pass," but that it will probably be challenged because being faced by your accuser is a constitutional right, and therefore the amendment's validity willbe questioned. However, more than 40 states allow this procedure, and according to Greenleaf, most prosecutors in Pennsylvania support it.

"Pennsylvania has one of the oldest and most prestigious constitutions in the US when it comes to defendants' rights," Grimaud says, "and we don't need a fundamental right taken away from us." Stroueber echoes his beliefs."Pennsylvania is known to give greater protection to the defendant than the nation as a whole." Asked whether or not she thought the amendment would pass, she answered thoughtfully, "It's an extremely important right to maintain. I donot want to see protection eliminated."